Chris Bosh Gets Ready for Big Game By Suing Ex-Wife!

It's good to be able to compartmentalize, so I'm sure the last thing on Chris Bosh's mind today will be the suit he filed against his ex-wife to get her off VH1's "Basketball Wives":

In his complaint, Bosh said the television series threatens to dilute his trademark and confuse viewers by suggesting that he endorsed Mathis' appearance on the show. The suit said Bosh has cultivated his trademark through YouTube videos that promote basketball programs for children. Mathis threatens to undermine that reputation by attacking Bosh's parenting skills on the show, the suit alleged.

In addition to trademark infringement, Bosh accused Mathis and the production company of violating his right to market his own identity and tell his own life story. He asked for damages of at least $75,000 and injunctions preventing the use of his name or image.

The lawsuit tried to counter any potential free-speech arguments by Mathis and Shed Media by claiming that the show is primarily commercial and does not express anything "other than an attempt to profit from (Bosh's) fame." The suit said the depiction of celebrity NBA players is "the very sum and substance of the show."

GO HEAT!

Judge Brown Vindicated; Let's Have a Bench Trial!

Judge Brown Vindication

Peter Halmos' last-ditch toe-tapping effort to have Judge Brown's order of reference vacated has been denied by Judge Martinez.

In a comprehensive order, Judge Martinez addresses specifically the "coerced consent" issue, the "mediator then adjudicator" issue, and the SIMPLY AMAZING(!) "judicial rhetoric" issue.

Here's a taste from footnote one:

Before Judge Brown asked any either party about consent individually, however, counsel represented to Judge Brown that the parties had all agreed to consent.  Judge Brown asked the parties one at a time regarding consent only after counsel made that representation.  Plaintiff's motion omits any mention of this portion of the transcript.

Translation = I've got your back!

Now go have some fun spending endless days proving up damages to a leaky boat.

"I Award You No Points, and May God Have Mercy on Your Soul."

To my friends in the media:

There's a little trial over somebody's damaged boat that may or may not start tomorrow in Judge Brown's courtroom.

Heard it could be interesting.

A few points arising from the eve-of-trial Halmos motion linked to above:

(1)  Could the process of consent to Magistrate jurisdiction truly be as depicted?

(2)  What to make of trying a case -- non jury -- after presiding over a confidential mediation of same?

(3) "[F]lamboyant grammatical form" (page 17)?

What on earth is he talking about?

Like I said, should be interesting.....

Law Updates for April 22, 2011

Harris, 36 FLW 163, Fla, (another dog sniff case)  To meet the State's burden of probable cause to search a vehicle after a dog alert the State must show that the officer had a reasonable basis to believe the dog was reliable under the totality of circumstances standard.  To meet this burden the State must present the meaning of the particular training of the dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any objective evidence known to the officer about the dog's reliability in being able to detect the presence of illegal substances within the vehicle.  Evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog's reliability for purposes of determining probable cause.

McCloud, 36 FLW 777, 4th DCA, Refusal to give LIO instruction for trespass where all elements of offense in charging document and evidence supported those elements.  Failure to instruct on offense one step removed reversible error.

Browning, 36 FLW 787, 1st DCA, Kidnapping.  Victim passenger in vehicle.  Defendant fled from police before arrested.  Detention of victim during commission of crime kidnapping, keeping victim in car against will, and driving off not incidental to crime of fleeing and eluding, consequential and substantial.  Victim forcibly removed from convenience store and from company of his friend, fleeing with victim in car made defendant's flight more likely to succeed as opposed to ordering victim to get out and waiting a few seconds for him to do it.

Montijo, 36 FLW 796, 5th DCA, In instructing jury on self-defense, justifiable use of deadly force, it was error to shift the burden to defendant to establish beyond a reasonable doubt that the victim was attempting to commit an aggravated battery on the defendant.  Burden never shifts to the defense to prove self-defense beyond a reasonable doubt.

Murphy, III v. Lamberti, 36 FLW 801, 4th DCA, trial court improperly revoked defendant's bond without finding that "no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial."  Trial court is not allowed to deny release solely on a finding that the defendant violated a condition of bond.

Dawson, 36 FLW 804, 2nd DCA, Pat down unlawful.  Officers did not have reasonable suspicion that the defendant was armed with a dangerous weapon.  Defendant stopped while walking along the highway, failed to comply with officer's requests to keep his hands out of his pocket was insufficient to establish reasonable suspicion where officers did not see any weapons or notice any bulges in defendant's clothing that would indicate he was carrying a weapon.

Sanchez-Andujar, 36 FLW 808, 1st DCA, Alibi witness.  Trial court erred in rejecting less restrictive measures and excluding defendant's alibi witness who had not been timely disclosed.  State did not trigger any defense obligation by filing written demand for notice of intention to claim alibi.  Exclusion of defense witness is not harmless error beyond a reasonable doubt that witness testimony could not have proved a reasonable doubt in minds of jurors sufficient to tip the scales in favor of am acquittal. Martin 41 So. 2d 1100(4th DCA 2010


The Law Offices of Roger P. Foley,P.A.

Checking Overdraft Cases Thrown into Turmoil!

We've previously reported on the numerous orders entered by Judge King finding various banks' arbitration clauses to be unconscionable.

Those orders are now highly suspect in light of the Supreme Court's Concepcion opinion last week.

Already the 11th Circuit has vacated at least five of these orders:

After oral argument in this case, the United States Supreme Court decided AT&T Mobility LLC v. Conception, No. 09-893, 2011 WL 1561956 (April 27, 2011). The district court’s order denying the motion to compel arbitration is VACATED, and this case is remanded to the district court for reconsideration in light of the Supreme Court’s opinion.

And Wells Fargo immediately moved before Judge King to have the case against it dismissed for lack of jurisdiction.

How this will impact the $410 million BoA settlement announced back in February is anyone's guess.

3d DCA Judges Want You to Eat With Them.

They don't get out much, the food at the bunker isn't so hot, they get hungry after vigorous mechanical room/gym time, it grows tiresome to enter 40 PCAs a day.....the reasons are myriad when you think about it.

So go see Judge Ramirez (who has done a great job!) and don't think about it:

Third District Court of Appeal

Historical Society, Inc.

 

cordially invites you

to attend its

 

Biennial Luncheon With The Judges

A “Members Only” Event with the Judges of

The Third District Court of Appeal

 

Featuring “Reflections on Serving as Chief Judge”

by The Honorable Juan Ramirez

 

May 13, 2011 at 12:00 noon

 

Hyatt Regency Coral Gables at The Alhambra,

50 Alhambra Plaza

 

Please note:

There will be no on-site registration.

Please access the Historical Society’s Membership Enrollment Form here.

Please access the Historical Society’s Luncheon Registration Form here.

 

Also note:

Current and former Third District Judges enjoy a complimentary registration fee.

All trial court judges and other government employees enjoy a reduced registration fee.

Shuster & Saben wins foreclosure case with its own motion for summary judgment.

Another Shuster & Saben foreclosure client has won their case against a securitized trust. After firm attorney, Richard Shuster, noted that the lawsuit filed by U.S. Bank N.A. as trustee for a securitized trust was not supported by any evidence that the foreclosing bank owned or held the note, he filed a motion for summary judgment on behalf of the homeowner and against U.S. Bank. Foreclosing banks often file motions for summary judgment against homeowners as a means to win cases without having a trial. A judge can only grant summary judgment when the moving party comes forward with competent evidence in the record and the other side fails to come forward with any record evidence to oppose the motion. Unfortunately, many foreclosure defense lawyers never file offensive motions for summary judgment against banks because they are content to merely delay the bank’s attempts to foreclose on the property.

Most of the lawyers at Shuster & Saben come from a civil litigation background. When we are not defending homeowners, we are suing insurance companies, banks, and bill collectors. We are used to taking cases trial where unless we win we don’t get paid one thin dime. When we take on a foreclosure case, we usually have four goals, (1) prevent default, (2) stop the bank for obtaining summary judgment, (3) implement an asset protection strategy for the client, and (4) win the case by dismissal, offensive summary judgment, or trial. Not every foreclosure case is a winnable case. In those cases where the bank’s case is very strong and the homeowner’s case is weak we let out clients know and give them frank objective advice about loan modification, short sale, deed in lieu of foreclosure, and in very rare cases bankruptcy. Even in the tough cases we invest a large amount of time to thoroughly conduct discovery to make sure the bank has evidence to prove every element of their case. When the bank is missing proof on any issue its our job to take their case apart. In the case we won by summary judgment the bank’s lawyers failed to come forward with any record evidence that the Plaintiff, U.S. Bank owned or held the note. As a result the Court entered summary judgment and final judgment in favor of the Defendant / Homeowner. To review a redacted copy of the summary judgment order please click the link below.

Redacted Summary Judgment Order